Houston Officer Loses Free Speech Lawsuit Against City

Thomas Nixon was a police officer with the City of Houston, Texas. Between May 2004 and January 2006, Nixon wrote a monthly column entitled “The Insider” in OO2 Magazine, a local Houston periodical. In his articles, Nixon identified himself as a police officer, discussed his police-related activities, commented on his duties as an officer and Houston Police Department policies, and made “caustic, offensive, and disrespectful” statements regarding certain groups of citizens, including minorities, women, and the homeless. Eventually, the Department received a citizen complaint about Nixon’s articles. After investigating the complaint, the Department suspended Nixon for 15 days without pay.

On January 18, 2006, there was a highly publicized police pursuit involving state and local law enforcement officers, including Houston Police Department officers. After the fleeing suspect had been identified, supervisors ordered officers to discontinue the pursuit but permitted them to follow at a distance. Nonetheless, the fleeing suspect eventually collided with an innocent motorist.

Although Nixon was not involved in the pursuit, he knew about it from local television reports he saw while he was off duty, at home, preparing for his shift.

As soon as his shift started, Nixon proceeded to the scene of the accident, even though he was never instructed to do so. Upon arriving, Nixon asked a supervisor if anyone was going to make a statement to the media and suggested that he do so. After the supervisor failed to respond (other than by laughing), Nixon proceeded to speak to the media. In his statement, Nixon criticized the Department’s decision to disengage the pursuit and stated he was “embarrassed to be a police officer” because the Department did not stop fleeing suspects. In response to these statements, the Department terminated Nixon.

Nixon filed a federal court lawsuit alleging that he was fired in violation of his free speech rights protected by the First Amendment. The Fifth Circuit Court of Appeals disagreed, and upheld Nixon’s termination.

As to Nixon’s comments about the high-speed chase, the Court cited the Supreme Court’s recent decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), with the proposition that speech made pursuant to a public employee’s job is not entitled to protection under the First Amendment. The Court reasoned that “Nixon spoke to the media while on duty, in uniform, and while working at the scene of the accident. The fact that Nixon’s statement was unauthorized by the Department and that speaking to the press was not part of his regular job duties is not dispositive – Nixon’s statement was made while he was performing his job, and the fact that he performed his job incorrectly, in an unauthorized manner, or in contravention of the wishes of his superiors does not convert his statement at the accident scene into protected citizen speech.”

The Court also found that Nixon’s columns in 002 Magazine were not protected speech because of the potential impact the articles had on the Department. As the Court viewed it, “given that Nixon identified himself as a Department police officer and the articles made patently offensive and insensitive comments regarding certain segments of the population, it is reasonable for the Department to believe that such comments and the continuation of the publication of similar articles would hinder the important relationship between the Department and the citizens of Houston. In fact, Nixon’s articles drew the attention of another local publication, Houston Press. The article in Houston Press identified Nixon as a veteran officer of the Department and commented that Nixon’s articles offer an inside look at what Department folks are thinking. The article also comments on Nixon’s article that compares inner-city minority residents to ‘rats’ and sarcastically states ‘the relationship between the Department and minorities takes another giant step forward.’ The Department convincingly states that its interest in maintaining public confidence is so important to its proper functioning because the Department often relies upon members of the public to provide critical information, to serve as witnesses, to respect law enforcement authority, and to provide financial support.”

Nixon v. City of Houston, 2007 WL 4418165 (5th Cir. 2007).

NOTE: The Nixon case illustrates how few free speech protections public employees have. In the case, the Houston Police Department did not prove that Nixon’s articles actually harmed it; rather, its arguments were that the statements had the potential to harm it. The Court found that the potential for harm – once inadequate to serve as a basis for disciplining an employee for speech – allowed the Department to fire Nixon.

This article appears in the February 2008 issue